Oh my: Is Ginsburg writing the main ObamaCare dissent?

posted at 8:01 pm on June 25, 2012 by Allahpundit

Via DrewM, I’m embarrassed that it didn’t occur to me in the other post to ask whether any of the Court’s liberals have taken on a conspicuously lighter workload lately. Sotomayor’s written the fewest among the Court’s left wing, according to Sean Trende, but that might be due to the fact that she’s a junior justice and isn’t getting as many assigned to her.

There are three cases left on the court’s docket, and the cases will be released in reverse order of the authoring justice’s seniority — beginning with Justice Elena Kagan, the newest justice.

Chief Justice John Roberts is expected to author the majority ruling in the health case — because of its significance and because Justice Anthony Kennedy authored the Arizona opinion, which was the second most controversial case of the term. Plus, neither he nor Justice Ruth Bader Ginsburg have published any opinions since May 24. During that time, every other justice has published at least two majority opinions.

Here’s the list of slip opinions for the term at the Court’s website. Since May 21, every justice besides Roberts and Ginsburg has authored at least two majority opinions. It’s a lead-pipe cinch that there’ll be some enormous omnibus dissent responding to the majority in the ObamaCare case, and since Roberts is almost certainly writing for the Court, that leaves RBG as the likeliest suspect for the dissent. Which means the mandate, and maybe the entire statute, is going bye bye.

Or … does it mean something more complex? More from that Politico piece:

The court could strike all of the remaining law, none of the remaining law, just two key insurance reforms, or something in between. So there could be three or more coalitions of justices with similar views, resulting in some kind of 3-4-2 vote breakdown…

For instance: the three most conservative justices could argue that the whole law should come down with the mandate. The four liberal justices could say that the whole remainder of the law should remain in place. And two justices could say that the mandate and insurance reforms should fall. In that case, the four justices would have the most votes, but they wouldn’t have a majority.

So the coalition of three and two justices would essentially combine, and the least common denominator — striking the mandate and insurance reforms — would be the law of the land.

Yeah, given the multiplicity of issues involved in this case, it’d be amazing if there wasn’t a clusterfark of plurality opinions on Thursday morning. Which makes me think, what if they’re splitting the opinion in two, with Roberts writing for five justices on the mandate, say, and Ginsburg writing for five justices on the Medicaid expansion and severability? (Politico notes that this is possible.) Maybe that’s why she’s been quiet for so long — she’s trying to piece together a majority opinion of her own and reworking it as her colleagues object to certain passages in her draft.

Exit question: The mandate gets cashiered but the rest of the statute stays more or less intact. Good enough?

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